Data Privacy Rules in the EU, Asia, and USA and How John Cleese Might Summarize

Copyright © 2012 Cary J. Calderone, Esquire

I had the pleasure of attending a terrific breakout session run by Amor Esteban (bio) and William Kellermann (bio).  My words would not do their presentation on Cross-Border Discovery and Data Privacy  justice.  So please forgive me for borrowing the words of John Cleese from The Meaning of Life to summarize:

Before we begin your lesson, would those of you playing in the match this afternoon move your clothes down onto the lower peg, immediately after lunch. before you write your letter home, if you're not getting your hair cut, unless you've got a younger brother going out this weekend as the guest of another boy, in which case collect his note before lunch put it in your letter after you get your haircut and make sure he moves your clothes down to the lower peg for you. (Age restricted Python video clip on Youtube)

Yes it's perfectly simple!

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The Hills Are Alive With the Sound of E-Discovery???

By Cary J. Calderone, Esquire

Still available on Amazon!

It is the Christmas season.  Those of us involved in DRED Law wish you and yours the happiest of holiday seasons.  Along with many of the more important traditions that occur, this time of year brings television repeats of classic movies like The Sound of Music.  For the past few years, I could not help but think of e-discovery while watching parts of this movie.  Now, I am not obsessed with e-discovery and data law. I promise you.  However, a few scenes from the movie explain in most vivid detail just why the EU has a very different attitude and set of rules towards email and other information that may reveal a user's personal identification.  So, this post is for all of you who are not aware, or, are uncertain as to why the EU Data Protection Act is far more strict and penal in attempting to protect personal privacy at work.  Let's see if these bits of dialogue from the movie validate my point and perhaps give you an idea of who, is to blame.  Take, for example:

Rolf to Lissel when delivering a telegram for Captain Von Trapp- “We make it our business to know everything about everyone.”  

Or, dialogue from Heir Zeller-“You were sent a telegram which you did not answer.  A telegram from Admiral Von Schreiber of the navy of the 3rd Reich.”
Captain Von Trapp “I was under the impression Heir Zeller that the contents of telegrams in Austria are private!  At least the Austria I know.”

The reasons should now be clear.  Once we in America understand the origins of the EU Data Protection Act, it will be easier to put in the systems and policies  necessary to better comply with the rules.  We will follow-up this holiday post in the new year with a more detailed explanation of the EU Data Privacy rules courtesy of a terrific breakout session run by Amor Esteban and William Kellermann.    Until then, if you are frustrated and angry with the challenge of navigating US Data rules and EU Rules at the same time, take heart.  You are not alone.  We can all just blame the Nazis...

Happy Holidays

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Churchill Club Presents The Big Data Effect

Copyright © 2011  Cary J. Calderone

Is Big Data being over-hyped?  "I certainly hope not" was Ping Li's heartfelt response to moderator Michael Chui's question to the panel (bios below).  Li's firm,  Accel Partners, made a splash in the news recently by announcing the creation of a 100 million dollar fund for investments in Big Data.   The Churchill Club panel members each gave their own interpretations of the Big Data Effect. They emphasized that Big Data was not just about  the volume of data, but how it could be researched, extracted, and analyzed.

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Big Data-Not Just Big Storage Or It May Be A Big Headache

Copyright © 2011 Cary J. Calderone Esq.

Time to give the busy professional's definition of the latest technology buzz phrase, "Big Data."  In brief, it is about being able to process and mine very large amounts of data (even petabytes) for business intelligence.  Big Data indexing and database technologies, like Hadoop and NoSQL allow for distributed processing that previously was impossible with standard table-based relationship databases.  However, too many short-term thinkers will try to implement a Big Data strategy by doing nothing more than keeping everything they can and figuring it out later.  This approach is fraught with Big danger.

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CEO Bans Email-Maybe Email Really Is Dead

Atos Headquarters Location at Lago Maggiore

A few weeks back I pointed out to DredLaw readers ways that new technology would be superior to email. (Link to article)  Now here is a European company, Atos, that is banning employees from using email to communicate with fellow employees (Link to article) and for precisely the same reasons mentioned.  They will be using new collaborative tools and instant and video messaging as alternatives.  While I applaud the effort, they will have to be very careful with their data retention and privacy programs.

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The C-Level Nightmare-Do You Know What You Do Not Know?

Copyright ©  Cary J. Calderone 2011

Is this your CEO, CTO, or, General Counsel?

This post goes out to all those C-Levels who have not approved pro-active information management and DRED work because, "they can just search and find what they need when they have to."  For almost any attorney or e-discovery professional with experience, this cavalier attitude causes a  LOL moment.   We also call this approach, "head in the sand," or sometimes, "ignorance is bliss...until it's not."   After the 9-11  attacks, when the Department of Homeland Security was created, I remember Secretary of Defense, Donald Rumsfeld, speaking about 3 things: 1)  What you know as fact,  2)  What you do not know but can research and discover and, 3)  What you do not know, you do not know.  C-Levels who think they will just find what they need, when they have not tested their approach under the threat of pending litigation, are in the last category.  They do not know, what they do not know.   Not convinced?  Then please consider these items:
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Coming to a Law School Near You- eDiscovery Class 101

Professor Rick Marcus

Copyright © 2011 Cary J. Calderone

A few weeks ago, I had the pleasure of attending a Hastings College of the Law alum event where Diane Gibson, a prominent San Francisco litigator with Squire Sanders et al., and UC Hastings Professor Rick Marcus, presented, E-Discovery and Preservation.  There was some good DRED news.  For an alumnae event, this was very well attended.  There were over 100 people who showed up because they were interested in learning about E-Discovery.  The bad news was that when Professor Marcus, a principal drafter of the 2006 E-Discovery amendments to the Federal rules, polled the audience to find out who had heard of FRE 502 (critical for protecting privileged material from accidental disclosure) only myself and three others raised their hands.  Scary!  During the lecture and the Q&A afterword, we heard about many of the interesting E-Discovery and preservation issues, and what the Advisory Committee is considering for future amendments, but for me, the most important item was that Professor Marcus will, for the first time, be teaching Hasting's E-Discovery class in the spring of 2012.
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New Facebook Privacy Settings-Are You Now A Publisher Or A Public Figure?

Copyright © 2011 Cary J. Calderone

This calls for a quick overview of Libel Law 101.   A publisher has standards for accuracy or else they can be sued for defamation and other things (see Description at Student Press Law Center).  There are things you can do to limit your exposure to legal action, by following certain protocols and guidelines.  For example, you have heard the phrase, "the truth is an absolute defense."  This may save you from a legal action for libel.   But, unfortunately, sometimes publishing the "truth" can expose you to other legal claims, like invasion of privacy.  This is especially so when the items published are, in fact, true, and perhaps, a tad unsavory.  However, there may be a defense for that too, if you happen to publish these unsavory truths about a public figure.   Public figures are pretty much considered fair game, or, at least at a level where even if you publish something about them, even with some non-truths or inaccuracies, you will be held to a more lenient standard.   At this point you may be a bit confused by this area of law and are thinking that you would never consider yourself a publisher anyway?  You don't even have a blog.   So why worry?  No reason, unless you happen to be on Facebook or another Social Media site and have a lot of friends, followers, or the newly created category of "Subscribers."
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"ISSA: Emails Prove Holder Knew" and Other DRED Headlines

Sometimes a headline can be a DRED story in and of itself.  Today, while browsing the internet, I saw a headline that said "Issa: Emails Prove Holder Told About Fast And Furious."   I could not help noticing how frequently we see those two words, emails and prove, together in a headline?   By Googling "emails prove" it came up with 45,900 results.  The list included story headlines with names like, Eric Holder, President Obama, Sarah Palin, Mark Zuckerberg and British Petroleum-and that was just on the first page of results.  Do you still think it is acceptable to treat your email as non-records, non-information, and, nonchalantly?
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E-Discovery-Shall we do it ourselves or outsource? The answer is, Yes

Copyright © 2011 Cary J. Calderone

Sometimes customers and prospects can ask me difficult questions.  The question on whether to in-source or outsource E-Discovery is an easy question.  The answer is, Yes.  There is no company, or law firm, no matter how large or small, that should do all or none of their E-Discovery themselves.  Where should you draw the line between the two?  Now, that is a more challenging question.  Here are three factors to consider when deciding:


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Social Media Governance-5 Reasons New Technology Applications Are Better Than Email

Copyright © 2011 Cary J. Calderone

DredLaw readers know I have mentioned the trend towards using "New Technology" like social media and social enterprise applications, in business.  Rypple and Yammer were developed for business use and even Twitter, Facebook, LinkedIn, and Google Plus, are a common consideration for any company looking to market on the internet.  Companies are using social style Wikis to manage internal projects.  To be sure, I have warned readers about the need to have policies and procedures as a safeguard so their companies can use these New Technology applications in accordance with good data management and DRED practices.  But, this post will focus on some of the positives and comparative benefits of using these newer applications.  Yes, there are still potential pitfalls to social applications in business.  However, when compared to old email policies and practices, social-style applications have the potential to be a tremendous improvement to your organization's computer communications practices, and here are 5 reasons why:
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eDiscovery Retreat-Laura Zubulake-Lessons from THE plaintiff

by Cary J. Calderone

One highlight at the Carmel eDiscovery Retreat, was hearing from THE plaintiff Laura Zubulake.  Zubulake v. UBS Warburg LLC., 217 F.R.D. 309(S.D.N.Y. 2003) is a seminal case and is the foundation for many other discovery decisions and even modifications to discovery procedure rules.  Rules were modified so they could be better applied to electronic media and computers.  Now I have to admit, I was like many attorneys who assumed that some very smart lawyers had recognized the value in searching defendant UBS's emails for evidence of wrongdoing.  But, that is not how it happened.  Laura was actually the one who insisted her attorneys demand production of emails because she KNEW the defendant had not done a reasonable job in producing the relevant materials in their possession or control.  The end result?  A $29.2 million dollar jury verdict in her favor.  As Laura noted, Electronically Stored Information (ESI) and email in particular, is "like DNA evidence for trials!"
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Carmel Valley eDiscovery Retreat-Great debut!

Nearby Asilomar Beach

When Chris La Cour invited me to attend the inaugural Carmel Valley eDiscovery Retreat I was a little hesitant to accept.  I have attended many legal technology, legal education, and eDiscovery shows, both as a speaker and blogger, so I expected an inaugural event to be, well, not very good.  I was wrong.  This event ran as smoothly as any conference I have ever attended.  The panels of legal and judicial speakers were top notch, up to date, and the setting was spectacular.   There were no problems with audio, acoustics, or scheduling.  The event was well-attended but there was ample comfortable seating and spacious meeting areas to interact with other attendees.  I am not alone in my praise.  I heard quite a few other attendees lauding the venue and agenda.  Some of the speakers really shared some valuable eDiscovery lessons.  Here are just a few of the comments:
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Facebook is now totally Ryppled! And, what that may mean for future eDiscovery

Copyright 2011 Cary J. Calderone

A few weeks after commenting on Facebook's latest big lawsuit and the email evidence involved, I mentioned how a product like Rypple, may effect a company's data retention practices (link to post).  Now that Facebook has announced they are using Rypple, I cannot help but wonder how future discovery requests in a lawsuit may have to differentiate between a "Like" designation and a "Thumbs Up" or, a Smiley Face?  You can just imagine a cross-examination in court:  "Isn't it true Mr. Boss, on this project you gave the former Disgruntled Employee, not one, but TWO Smiley Faces and a Thumbs Up!!!"   "Let's bring up the digital display so the jury can see the Smiley Faces."   Will the evidence of Smiley Faces be in native or some other format?  Do we care?  We should, and here's why.
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The ROI of eDiscovery? Why not just calculate the ROI of a good night's sleep

I have seen so many articles that attempt to sell the purchase of large eDiscovery tools with a Return On Investment analysis. The resulting magic formula always shows just how much money a customer can save in an average legal matter. And yet the ROI cannot be very compelling. With the exception of one General Counsel of an international enterprise software provider (kudos Kim), I have never been hired by a company that had not already been “tagged” in a litigation matter for big bucks. And, by tagged, I mean that they were sanctioned for discovery failures or, they realized they could not collect their data to mount a defense and had to settle the case. So, my argument is, it may be more effective and productive to calculate the ROI of a good night's sleep. Let me explain.
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